NSW pubs and clubs fear that millions of dollars in renovations to
provide outdoor areas for smokers could go to waste, after a case testing
the smoking laws failed in the Supreme Court.
Justice Peter McClellan on Friday handed down a landmark judgment against
Dubbo RSL, in western NSW.
NSW Health was threatening to fine the club over two combined
indoor/outdoor areas where patrons were being permitted to smoke.
The RSL claimed the gaming and TAB areas were not required to be
smoke-free, because they were not "enclosed areas" as defined by the 2000
Both opened out onto courtyard areas and, the RSL argued, were at least
25 per cent exposed to the open air.
The club's renovations cost $4 million.
But Justice McClellan, the chief judge at common law, ruled against the
RSL, saying it would be a "surprising result" to allow smoking in a
roofed area simply because it opened onto outdoor space.
"If the area in question is not covered by a roof the opportunity is
available for smoke to disperse to the atmosphere," he said.
"However, when the relevant place has a roof the smoke may only escape
laterally, and the extent of lateral openings becomes the critical issue
affecting the healthiness of the premises."
Justice McClellan said the ruling would have "general significance to
licensed premises" across the state.
ClubsNSW was quick to voice its disappointment, warning the ruling was
likely to send shockwaves through the state's 1,400 clubs and 2,000 pubs.
"The industry has spent over $450 million on the construction of outdoor
areas," CEO David Costello said in a statement.
"Clubs who wish to give their patrons an area where it is legal to smoke,
in many cases, have built partially covered outdoor areas in order to
provide some protection from the elements."
Mr Costello said the successful introduction of the smoking ban, which
came into effect last July, was due in large part to the cooperation of
the pubs and clubs industry in providing outdoor areas.
Many were already suffering financially and would not have the resources
immediately to make additional alterations or pay fines issued by NSW
Health for non-compliance.
NSW Health said it was happy with the ruling, but declined to comment on
its enforcement until it had carefully considered the judgment.
Whether the government will allow a grace period for amendments to
existing areas or will enforce the ruling only for new outdoor areas are
among the issues of concern to the industry.
Mr Costello said ClubsNSW was seeking legal advice.